26 F.4th 1214
11th Cir.2022Background
- Del Castillo ran a health-coaching business providing individualized dietary and nutrition advice for pay; she was unlicensed under Florida law and lacked qualifications for a dietician/nutritionist license.
- Florida’s Dietetics and Nutrition Practice Act requires licensure to provide dietetics/nutrition practice or counseling for remuneration and makes unlicensed practice a misdemeanor.
- A licensed dietician complained; the Department investigated, issued a cease-and-desist, fined Del Castillo, and assessed investigatory fees after a sting.
- Del Castillo sued under 42 U.S.C. § 1983 claiming the Act, as applied to her individualized advice, violated her First Amendment free-speech rights and sought declaratory and injunctive relief.
- The district court granted summary judgment for the Department, relying on Locke v. Shore to treat the licensing scheme as a regulation of professional conduct with only an incidental effect on speech.
- On appeal Del Castillo argued Locke was abrogated by the Supreme Court’s decision in NIFLA and that the Act is a content-based restriction requiring strict scrutiny; the Eleventh Circuit affirmed, holding Locke still controls.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Locke v. Shore was abrogated by National Institute of Family & Life Advocates v. Becerra | NIFLA rejected the "professional speech" doctrine Locke relied on, so Locke no longer binds the court | NIFLA disclaimed professional-speech as a categorical exception but reaffirmed that states may regulate professional conduct that only incidentally burdens speech; Locke rests on that surviving rationale | Locke is not abrogated; its holding survives to the extent it treats licensing as regulation of professional conduct with merely incidental effects on speech |
| Whether Florida’s Dietetics and Nutrition Practice Act, as applied to Del Castillo, is a content-based speech regulation subject to strict scrutiny | Del Castillo: Her individualized dietary recommendations are pure speech; the Act is content-based and must satisfy strict scrutiny | Department: The Act regulates professional occupational conduct; any restriction on speech is incidental, so First Amendment scrutiny is inapplicable or reduced | The Act regulates professional conduct and only incidentally burdens speech; it does not violate the First Amendment as applied to Del Castillo |
| Whether the 2020 amendment to the Act moots Del Castillo’s claims | Del Castillo: The amendment’s exception does not cover her practice and future intended clients under physician care, so claims remain live | Department: The amendment narrows coverage and could moot the appeal | The amendment did not remove all challenged features; the First Amendment challenge is not moot |
Key Cases Cited
- Locke v. Shore, 634 F.3d 1185 (11th Cir. 2011) (upholding Florida interior-designer licensing as a professional regulation with only an incidental effect on speech)
- National Institute of Family & Life Advocates v. Becerra, 138 S. Ct. 2361 (2018) (refusing to recognize a categorical professional-speech exception while reaffirming that states may regulate professional conduct that incidentally burdens speech)
- Wilson v. State Bar of Georgia, 132 F.3d 1422 (11th Cir. 1998) (recognizing that regulations governing occupational conduct with only incidental effect on speech can withstand First Amendment scrutiny)
- Lowe v. SEC, 472 U.S. 181 (1985) (White, J., concurring) (reasoning relied upon in Locke for distinction between public-targeted speech and direct client communications)
- United States v. Petite, 703 F.3d 1290 (11th Cir. 2013) (explaining when a later Supreme Court decision fully undermines prior panel precedent)
- DeLong Equip. Co. v. Wash. Mills Electro Mins. Corp., 997 F.2d 1340 (11th Cir. 1993) (illustrating that a prior precedent with two rationales survives if only one rationale is later rejected)
- Sykes v. United States, 564 U.S. 1 (2011) (example of a Supreme Court decision that demolished both foundations of prior panel precedent)